Archive for June, 2013

Lately, in between studying for law school exams and taking law school exams and doing the law school journal writing competition, I’ve been streaming superhero movies thinking a some about morality, and what it means, and its place in the law. It’s well known that the legal field can be a fraught place for morality, not least because the legal profession consists more or less entirely of either trying to help one person or group forcibly take things  (generally money, but also sometimes freedom, property, even life) from another, or of trying to stop that kind of taking from happening. Law is also a subject area where a lot of complicated elements get mashed together–money, power, religion, national identity, etc.–and so it can be legitimately problematic to figure out what is right and what is wrong, sometimes (or even what is true/false). Law (like literary criticism) dwells most comfortably within cracks and interstices and gray areas and uncertanties. Part of being a lawyer is finding those cracks and, sometimes, when they are absent, taking a chisel and opening some up. It’s no wonder that lawyers in general don’t have the happiest of reputations.

Plus, given the adversarial nature of the law, and the politically/emotionally/intellectually polarized subjects that come together in a lot of legal debates, it’s especially important to be sensitive to other opinions, and to give a fair hearing to all sides.

These concerns are of course less essential on a blog, where I’m free to anonymously rant or lecture or speculate about whatever I want. Those who come here looking for a balanced weighing of the issues will be disappointed.

Nonetheless, I have for the main part avoided politically charged subjects here, until my recent post on the gay marriage debate. That post, to my own surprise, generated a few comments and a little bit of confusion among readers, and so I thought it might be useful to address what some have rightly pointed out was probably the central problem in a somewhat incomplete argument: namely, that when I say that homosexuality is not immoral (or that it’s even possible for “God” to be “immoral”), I used a sortof unconventional definition of ‘morality,’ and by doing so, I skirted around what is probably the central issue in the gay marriage debate. I’m not going to adequately address that debate now–you have a whole internet to go to for that kind of thing–but I will try to explain what on earth I was talking about in my earlier post.

The problem is that ‘morality,’ like ‘love’ or ‘duty’, is a broad term that can sensibly encompass a range of pretty discrete meanings. The type of morality I was considering could maybe be characterized as a sort of loose approximation of Kant‘s categorical imperative (or, for you laymen, something like the golden rule of do unto others etc.). In doing so, I think I was trying to state a type of morality which is both universally applicable and appropriate for a legal context: a moral system that you could write into law. This is related to John Rawls’ veil of ignorance, and it’s a very abstract and pragmatic idea of morality.

The point being that this idea of morality (call it “liberal morality”) is in fact pretty fundamentally distinct from the way that most people talk and think about morals. I would suggest that most of us come to conclusions about “right” and “wrong” not by abstract utilitarian calculations but by reference to identity and tradition: what is right and wrong depends upon what group you belong to, what your history is, what language you speak, who your parents are, and what texts you hold sacred. I’ll call this “conservative morality,”♦ and it’s a much richer and more personal idea of morality–one that is bound up with identity and community and family–and so its no wonder that many conservatives tend to find liberal morality pale and unsatisfying and relativistic and even dangerous. The subjects that most concern liberal morality–whether something is harmful (ie. causes a loss of wealth, or an increase in pain)–are secondary in conservative moralities, which can assign even greater stigma to certain non-harmful activities.

While the term is politically loaded, it might be useful to say that conservative morality as I’ve formulated it demands a ‘politics of exclusion’: it’s based on maintaining a cohesive group. I’m talking not just about the moral code of religious organizations (which may restrict homosexuality, or women showing their faces in public, or eating non-kosher foods), but also the type of moral code you see in mafia movies (family first, don’t be a snitch), or even just in individual families (no feet on the table?).  It’s important to remember that exclusion is central to identity; to the extent that being ‘American’ means anything, it’s because America is different from other places (including, for better or worse, socialist European nations). Conservative morality is directly related to who we are as a country, and while it lends itself to jingoisim and us-vs-them absolutism and all the kinds of scary extremisms that accompany real ideological conviction, it is also connected with positive things like family and tradition that are obviously and perhaps tragically on decline in the modern world. 

This is, of course, a pretty facile dichotomy, but I think it might still be a useful way of looking at a lot of contemporary politics. For instance, it helps explain why so many of the arguments against gay marriage in the recent supreme court cases were so pallid and embarrassing, like for example the argument that the main purpose behind the institution of marriage is to produce children, which those poor lawyers for the defense had to deliver to the supreme court while keeping a straight face. It’s not that there are no good arguments for banning gay marriage; it’s that the actual reason for such a ban–that the majority of Americans find homosexuality to be morally repugnant (and if they feel otherwise, they should show it with their votes)–has already been declared constitutionally illegitimate in the case of Lawrence v. Texas. There the court held that this type of moral sentiment, unjustified by evidence of material harm caused by the objectionable class, is for legal purposes nothing more than “irrational prejudice.” A critic might point out, however, that the difference between “irrational prejudice” and “traditional moral values” seems to depend more on where you stand than on any objective evidence. Justice Scalia, who dissented in Lawrence, has argued that in a democracy the majority has the constitutional right to declare what kinds of behavior are right and wrong, so long as their will doesn’t contradict explicit confines of the constitution itself. This is not a weak argument; it was in fact the court’s position not that long ago, in Bowers v. Hardwick. 

On the other hand, I think that most of us, when really questioned, would say that the court should strike down laws that discriminate against a certain class of people without objective reason, regardless of the traditional moral values that might underlie that discrimination. Liberal morality doesn’t precisely discount conservative morality, but it does relegate it to the private sphere. The establishment clause is one way our constitution upholds this separation; the fourteenth amendment (as the Court has recently interpreted it) is another. There is, however, certainly room for respectful disagreement on the subject.

*My idea of politics is also very influenced by Richard Rorty, who basically said that since philosophy is often sortof a crock, and we can’t actually really have any absolute knowledge about abstract concepts like “good” or “evil,” we should instead focus our efforts and our laws on trying to cause as little harm to our fellow man as possible: to ameliorate suffering, and to avoid cruelty. That seems like a pretty sound policy to me.

♦I didn’t come up with this stuff all by myself. As with most of my blog, what you read has already been said better elsewhere. However, I couldn’t find the really relevant articles to link you to and I don’t remember what they are, so I’m just going to say that I know some of this is based on the work of Stanley Fish (as usual), and that the characterization of social conservatism in general probably owes a good bit to Ross Douthat at the New York Times, whom I read religiously. I also owe a lot to my favorite legal theorist, Robert Cover, whose book Nomos and Narrative is all about the way that public law interacts with the private legal systems of the smaller groups that it governs. Highly recommended.


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